State of New Jersey v. Joshua Latorre

• Court: New Jersey Superior Court Appellate Division
• Decided: April 25, 2025
• Docket: A-1602-23
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1602-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSHUA LATORRE,

Defendant-Appellant. _______________________

Submitted February 25, 2025 – Decided April 25, 2025

Before Judges Firko and Augostini.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 22-03-0370.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Zachary G. Markarian, Assistant Deputy Public Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Joshua Latorre appeals from the trial court's October 27, 2023

order upholding the prosecutor's rejection of his application for admission to the

Pretrial Intervention Program (PTI), and his ensuing conviction of fourth-degree

child abuse and neglect, N.J.S.A. 9:6-3, memorialized in the November 29, 2023

judgment of conviction. Applying the strong judicial deference required in

reviewing such prosecutorial denials and because we discern no patent and gross

abuse of the prosecutor's discretionary authority, we affirm.

Defendant is the father of a young son, who at the time of the incident that

gave rise to these criminal charges, was three months old. On August 5, 2020,

defendant and the child's mother took the child to the hospital with injuries to

his leg. Defendant stated that he was taking care of the child that evening when

he heard a "snap" as he climbed into bed with the baby. They brought the child

to the hospital when they later noticed the child was not moving his leg, it was

"rounded," and the child was crying uncontrollably. Defendant contended the

injury was accidentally caused while he was changing the child's diaper.

During the investigation, Paulett Diah, M.D. (Dr. Diah), a physician with

the Audrey Hepburn Children's House, reviewed the child's medical records

related to the incident, and authored a report regarding the child's injuries. Dr.

Diah characterized the child's femur fracture as a spiral oblique femur fracture,

A-1602-23 2 which is a type of fracture caused by a torsional force or twisting mechanism

applied to the child's leg. As a result, Dr. Diah opined that the child's injury was

inconsistent with the explanation given by defendant. Rather, Dr. Diah

concluded that the fractured femur was "concerning for non-accidental injury."

Dr. Diah also identified an "acute left posterior parafalcine subdural hematoma"

and opined that this injury was also unlikely to have been caused accidentally.

On March 7, 2022, a grand jury indicted defendant, charging him with one

count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and one

count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4.

On March 29, 2023, pursuant to a negotiated plea agreement, defendant

entered a guilty plea to the amended charge of fourth-degree child abuse or

neglect. Defendant admitted to performing an unlawful act by using an

unnecessary amount of force on the child's leg while he was caring for the child.

In exchange for his guilty plea, the State agreed to recommend a probationary

sentence with up to 364 days in the county jail and to dismiss the remaining

charges. The State further agreed to remove the no-contact order with the child

subject to the Division of Child Protection and Permanency's (the Division)

recommendation and the family court's approval. The court accepted

defendant's plea and scheduled the matter for sentencing on June 2, 2023.

A-1602-23 3 Before being sentenced, defendant requested permission to file an out-of-

time application for admission to PTI. While the State objected to defendant's

admission into PTI, the prosecutor stated, based on the amended second-degree

charge to a fourth-degree charge, that defendant no longer needed the State's

permission to apply for PTI. Thus, the court permitted defendant to apply to

PTI.

On July 28, 2023, the Criminal Division Manager approved defendant 's

admission into PTI. On the same day, the prosecutor filed a letter objecting to

defendant's admission, noting the following factors under N.J.S.A. 2C:43-12(e)

as its basis for objecting:

(1)[t]he nature of the offense; (2)[t]he facts of the case; . . . (4)[t]he desire of the complainant or victim to forgo prosecution; . . . (7) [t]he needs and interests of the victim and society; . . . (10) [w]hether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior; . . . (14) [w]hether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution; . . . and (17) [w]hether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

A-1602-23 4 The State further stated it would file a brief amplifying its reasons for objecting

should the defendant appeal the rejection. On September 20, 2023, defendant

filed a motion, appealing the State's denial of his enrollment into PTI.

In the October 27, 2023 order, with an accompanying statement of

reasons, the court denied defendant's motion, finding that defendant had not

overcome the presumption of "no diversion" based on the original second-degree

charges. While the court noted that further consideration of defendant's

application was unnecessary, the court reviewed the State's reasons for rejecting

defendant's application. The court concluded defendant had not "established by

clear and convincing evidence that the State's rejection . . . constitute[d] a patent

and gross abuse of discretion."

On November 17, 2023, defendant was sentenced to one year of non-

custodial probation, which was memorialized in the November 29, 2023

judgment of conviction.

Defendant makes the following singular argument with subparts on

appeal:

A-1602-23 5 POINT I

THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO THE PRETRIAL INTERVENTION PROGRAM WAS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION, WHICH MUST BE CORRECTED BY THIS COURT.

A. The Prosecutor's Opposition Parroted the Statute and Did Not Consider the Facts of [defendant's] Case, Which Failed to Facilitate Judicial Review, Further the Purposes of PTI, Afford [d]efendant the Ability to Respond, or Dispel the Suspicion of Arbitrariness.

B. The Prosecutor Clearly Erred in Finding the victim Did Not Wish To Forego Prosecution Where the Victim Was Too Young to Offer An Opinion[.]

C. The Prosecutor Failed to Explain Why a Conviction and the Attendant Collateral Consequences Were Necessary to Serve the Interests of the Victim and Society Where [defendant] Would Serve the Same Period of Supervision If Admitted to PTI[.]

I.

As with the trial court, our review of a prosecutor's PTI decision is

extremely narrow. Because there is a "close relationship" between a prosecutor's

charging authority and the PTI program, "courts allow prosecutors wide latitude

in deciding whom to divert into the PTI program and whom to prosecute through

A-1602-23 6 a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing State v.

Nwobu, 139 N.J. 236, 246 (1995)). "Judicial review serves to check only the

'most egregious examples of injustice and unfairness.' " Ibid. (quoting State v.

Leonardis, 73 N.J. 360, 384 (1977)). A court should only reverse "a prosecutor's

decision to deny PTI" when a "defendant 'clearly and convincingly' establishes

the decision was a 'patent and gross abuse of discretion.' " State v. Johnson, 238

N.J. 119, 128-29 (2019) (quoting State v. Wallace, 146 N.J. 576, 583 (1996)).

We recognize that a prosecutor's decision to reject a PTI applicant is

"afforded great deference." State v. Baynes, 148 N.J. 434, 443 (1997) (quoting

Nwobu, 139 N.J. at 246). That deference "is so high that it has been categorized

as 'enhanced deference' or 'extra deference.'" Id. at 443-44 (quoting Nwobu, 139

N.J. at 246).

A person charged with a crime "for which there is a presumption of

incarceration," as was defendant, are ineligible to apply for admission into PTI

without the prosecutor's consent. R. 3:28-1(d)(1). A prosecutor's withholding

of consent is subject to appeal for "a patent and gross abuse of discretion." R.

3:28-6(b)(1). Based upon a review of the record and applying this deferential

standard, we agree with the trial court that defendant failed to show clearly and

A-1602-23 7 convincingly that the prosecutor's refusal to sanction his admission into PTI was

a patent and gross abuse of prosecutorial discretion.

II.

We begin our analysis by addressing the nuanced issue of whether

defendant should be treated as having been charged with a second-degree or the

fourth-degree crime to which he pled. Rule 3:28-2 states that "[a]pplications for

pretrial intervention shall be made at the earliest possible opportunity, including

before indictment, but in any event no later than the Initial Case Disposition

Conference, unless good cause is shown or consent by the prosecutor is

obtained." This rule supports the trial court's conclusion that the appropriateness

for a diversion into PTI is based on the initial charges filed against a defendant.

Here, those second-degree charges barred defendant's application to PTI without

the prosecutor's consent.

At the June 2, 2023 hearing, the prosecutor, while not agreeing ultimately

to defendant's admission into PTI, did acquiesce to defendant applying to the

program based on the amended fourth-degree offense. The court agreed to allow

defendant to apply. However, neither the State nor the trial court identified any

special circumstances as required to overcome the presumption against

defendant's admission into PTI for these indicted second-degree offenses. State

A-1602-23 8 v. Roseman, 221 N.J. 611, 623-24 (2015). Nonetheless, because the prosecutor

consented and the court permitted defendant to apply, the court considered

whether the State's subsequent objection to defendant's admission into PTI

constituted a patent and gross abuse of discretion. We discern no error in this

alternative approach.

In support of his argument that the State's rejection of his admission into

PTI was a patent and gross abuse of discretion, defendant asserts three claims

regarding the prosecutor's opposition: (1) it "parroted the statute without

considering" the individual facts of defendant's case; (2) it incorrectly asserted

"the victim did not wish to forego prosecution where the victim was too young

to offer an opinion"; and (3) it failed to explain "why a conviction and attendant

collateral consequences were necessary to serve the interests of the victim and

society" where defendant would be serving the same period of supervision.

Our Supreme Court has "defined a 'patent and gross abuse of discretion'

in the context of a prosecutor's denial of a PTI application" by holding:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. . . . In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of

A-1602-23 9 will clearly subvert the goals underlying Pretrial Intervention.

[Id. at 625 (omission in original) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]

Defendant contends that the State's initial letter filed on the same date the PTI

Director recommended defendant's admission into PTI, failed to carefully

consider all relevant facts and circumstances, without the individualized

consideration of the unique circumstances of defendant's case. This contention

fails to acknowledge, however, the State's October 13, 2023 response brief in

opposition to defendant's motion to appeal his rejection from PTI, amplifying

the reasons for the State's opposition. Defendant was given ample advance

notice of the State's reliance on and reasoning for certain factors and was given

an opportunity for oral argument on October 24, 2023.

Moreover, the State's more detailed response, which did not merely

"parrot" the relevant factors, emphasized the nature of the offense. The

significant injury to the child, as the trial court explained, was of "great concern

given that the victim was an infant at the time of the assault." Thus, the State

appropriately placed significant weight on the offense-focused PTI factors.

Nor did the State disregard the position of the child's mother in reuniting

with defendant or the Division in recommending the family's reunification and

A-1602-23 10 termination of the agency's involvement as mitigating factors. Here, we agree

with the trial court that it was not a patent and gross abuse of discretion for the

State to give weight to protecting the interests of a minor victim who was too

young to speak for himself, while recognizing the child's mother did not wish to

pursue a prosecution against the child's father. As the trial court aptly noted,

"[w]ithout oversight of the law, child victims would be without a needed voice

to protect them, and such defendants would be free to commit acts harmful to

the interests of society."

Defendant also contends the prosecutor failed to explain why admitting

defendant to PTI would not adequately protect the interests of the victim and

society. Defendant argues that the "only meaningful difference between PTI

and a felony conviction" are the collateral consequences, which fail to serve

either the victim's or society's interests. As our Supreme Court explained, a

"negotiated non-custodial sentence does not retrospectively impugn the

soundness of a previous prosecutorial decision that criminal prosecution rather

than pretrial diversion is the appropriate disposition of the charges against [a]

defendant." Wallace, 146 N.J. at 588-89. Moreover, as the trial court explained,

when evaluating the harm done to society by abandoning a criminal prosecution

as compared with the benefits to society from diverting an offender into PTI, the

A-1602-23 11 court cannot "substitute [its own] discretion for that of the prosecutor" even if

the "decision is one that the trial court disagrees with or find to be harsh." State

v. Kraft, 265 N.J. Super. 106, 112-13 (App. Div. 1993) (alteration in original)

(first quoting State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980);

and then citing State v. DeMarco, 107 N.J. at 562, 566-67 (1987)).

As the trial court acknowledged, the State's opposition did not address

every factor. However, defendant does not cite to any inappropriate or irrelevant

factors considered, and the trial court correctly "presume[d] that a prosecutor

considered all relevant factors, absent a demonstration by [] defendant to the

contrary." Wallace, 146 N.J. at 584 (citing Bender, 80 N.J. at 94). We are

satisfied the State's analysis of the relevant factors provided sufficient basis for

the trial court to conclude that the prosecutor considered "the facts in light of

the relevant law" in rejecting defendant's enrollment into PTI. Ibid. (citing State

v. Sutton, 80 N.J. 110, 117 (1979)). Thus, we discern no error in the trial court's

review of the State's reasons for denying defendant admission into PTI and in

its decision not to override the prosecutor's rejection of defendant's application.

Affirmed.

A-1602-23 12